Opinion
(December Term, 1843.)
1. Upon the destruction of any part of the record while a suit is pending, or rather of the process, pleadings, or orders in a suit, such loss may be supplied by making up others in their stead, provided the court be reasonably satisfied that the two are of the same tenor.
2. Upon that matter the court in which the suit is must exercise its own judgment.
APPEAL from Battle, J., at Fall Term, 1843, of MONTGOMERY.
No counsel in this court.
In this case the plaintiffs, alleging that the record of the suit was destroyed in the fire by which the courthouse and all its contents were consumed in March last, proposed to supply the loss by parol proof of its existence and destruction, and showed that the defendants had notice to produce the original record, and of the intention of the plaintiffs, in case of its nonproduction, to offer secondary evidence of its contents. The defendants objected, that to show that the cause was in court, the original record must be produced, and that nothing could supply its loss. The court held that if the existence and destruction of the record were proved, then it was competent for the plaintiffs to supply the loss, first, by the production of a copy, if that might be had, but if no copy had been taken and preserved, then, in the second place, by parol proof of its contents. The clerk of the court was then introduced, and testified that in the month of March last the courthouse for the county of Montgomery was destroyed by fire, and that all the records of the Superior Court of law for said county, including the record in this case, were also destroyed; that no copy of the said records was taken and preserved, except a copy of the trial docket which had been made out at the last term of this court for the use of the court or the bar. The witness then stated the contents of the record in this suit. Whereupon (82) the court directed the clerk to make out a complete record of the cause and ordered a jury to be impaneled to try the issues joined therein. The plaintiffs thereupon had a verdict and judgment, from which the defendants appealed to the Supreme Court.
We see no difficulty in the objection stated in this case, but concur in the opinion of his Honor. While a case is pending, an omission in the record from misprision of the clerk or any accident may from necessity be supplied by making the proper entry as of the proper time so as to make the record speak the truth as to the doings of the parties or the court in that matter. Upon the same principle, upon the destruction of any part of the record, or rather of the process, pleadings, or orders in a suit (for the record, properly speaking, is not made up until the cause is at an end), such loss may be supplied by making up others in their stead, provided the court be reasonably satisfied that the two are of the same tenor. Thus, upon the loss of an original bill in equity or the destruction of a declaration, copies extant have been ordered to be filed and stand as the originals. And so we think it must be as to each part and the whole of the proceedings. The real difficulty in the case consists not so much in the legal principle as in the party having the means of satisfying the court as to the tenor of the documents destroyed, which he is under the necessity of doing before he can put in a substitute for them. But if the court is able to see really that, from the materials before it, another record may be made of the same purport, so that no injustice will be done, it is both within the authority and duty of the court so to order. There was no intimation in this case of a variance between the record that was burnt and that newly drawn up, and there can be scarcely a suspicion that they are not of the same tenor, since the action is debt on a bond which is produced, and corresponding to which were doubtless the writ and declaration, and the issues appear from the memoranda on the preserved docket. Such being (83) the circumstances, we suppose the judge could not hesitate upon the question of fact; but into that this Court does not enter, it being our province only to say whether the Superior Court had the power in controversy, upon which our opinion is clear in the affirmative.
PER CURIAM. Affirmed.
Cited: Greenlee v. McDowell, 39 N.C. 485; Stanly v. Massingill, 63 N.C. 559; Hill v. Lane, 149 N.C. 271.